Nigeria: Sub-Sahara Africa: Intellectual Property Rights Development

By Uche Nwokocha1

Introduction

Sub-Sahara Africa has become a place of interest for the world.
Though the region recorded an enormous in-flow of investment in the
past decade, there are however palpable set-backs that still impede
economic development. Some of these include:

Political instability

Poor leadership

Lack of advanced technology

Low level of education and infrastructure

One area through which the Region can explore huge investment
opportunities is in intellectual property rights
development and protection. This will result in increased
revenue.

Categories of Intellectual Property Rights

[b] Copyright, which includes literary and artistic work such as
novels, poems and plays, films, musical works, artistic works ie
drawings, paintings, photographs and sculptures, and architectural
designs.

Rights related to copyright include those of performing artists
in their performances, producers of phonograms in their recordings,
and those of broadcasters in their radio and television
programs."2

Overview of Intellectual Property Law

Basically, intellectual property law protects the right of
owner of a work created by exertion of mind or intellect to use the
work exclusively, barring any use of the work without the
owner's prior consent.

The term 'intellectual property' scarcely describes
trade marks and similar marketing devices; but has now acquired
international acceptance. IP or IPR is indeed becoming a
fashionable description of research results and other original
ideas, whether or not they fall within the ambit of what the law
protects.3.

Certain IPRs do not protect ideas but the expression of such
ideas. The expression of this idea must also satisfy the
requirement of disclosure in some cases.

The question constantly raises agitation is how to balance the
rights of an inventor or owner of an IPR with the right of the
public to share in the work. The patent system is designed to
promote innovation and, at the same time, offer a mechanism that
would ensure that the fruits of such innovation are accessible to
society. In the context of public health, the challenge for policy
makers is to find an optimal balance between the rights of patent
owners, who provide technological innovations to improve health
conditions, and the needs of the general public.

The challenge of balancing the private interest of the IPR
owner with the public rights of disclosure forms the circle of
intellectual property protection characterized by the laws of the
States in the region and the world in general.

The role of IPRs is to ensure that the intellectual property
owners do not lose rights to the information by disclosing it since
such information can be used by an indefinite number of persons
simultaneously4.

Most applications for IPR protection in sub-Sahara Africa are
not filed by the nationals or residents of the region. Statistics
show that most patent applications emanate from North America,
Europe and Asia while Africa only accounts for less than 2% of
total applications made5.

In Nigeria, about 99% of patents applications lodged with the
Patent & Designs Registry are made on behalf of foreign brand
owners in Europe, United States of America and Asia. South Africa
accounts for less than 1%.

Trademark seems the most active IPRs in sub-Sahara Africa most
especially in Kenya, Ghana, Gambia, Nigeria, and South Africa. This
is the area of IPRs which had witnessed numerous applications from
nationals of the region. Copyright has not really witnessed any
notable activity in the region. Most transactions involving
copyright are rather done on an informal basis. It is ironic that
the region produces quite a number of home video entertainments
with Nigeria leading the chart in Africa. Still some of these works
are not protected due to lack of awareness of IPRs. At a recent
workshop on Intellectual Property Rights for Professionals in the
film industry, a speaker from the copyright office in Kenya
suggested that the Nigerian Copyright Commission (NCC) should work
with its Kenyan counterpart to find ways to rid the streets of
Nairobi of Nigerian films imported from China without the consent
of the owners of such rights.

The Nigerian movie industry (Nollywood) is second only to
United States (Hollywood) and India (Bollywood) in the production
of about 200 home videos per month6. Nollywood attracts
multi-million dollars investment locally and internationally
although it is still struggling with some technical and quality
issues7.

Though IPR has fully developed in other regions, this is not
the case in Sub-Sahara Africa. The major reason for this is the
impact of Intellectual Property Rights on access to medicine and
food. There has been a challenge between the biological resources
provided by or usually assessed from the Sub-Sahara Africa and the
technology provided by the developed nations of Europe and North
America8 .The resultant effect of these are:

Big pharmaceutical Companies shipping these drugs to Africa at
an exorbitant cost.

Creation of economic inequalities, thus polarizing the
world.

IPRs gradually becoming issues of international debate (or
infiltrating into the realm of world politics)9

Administration of Intellectual Property Rights

A few countries in the region have taken bold steps to put in
place legal framework for the prevention of the infringement of
intellectual property rights.

In Nigeria, the Nigerian Copyright Commission
(NCC)10, a creation of the Federal
Legislature, is empowered to regulate the music, publishing,
artistic, literary societies. The Nigerian Broadcasting
Commission11, also a creation of the
legislature regulates the broadcasting rights, licenses, and
assignments. The Registry of Trade marks, Patents &
Designs regulate the filings of trade marks industrial
designs as well as grant of patents in Nigeria. Likewise,
the National Office for Technology Acquisition and
Transfer12 registers Technical Service
Agreements and Technology Transfer and Know-How Agreements.

Similar frameworks also operate in Kenya, South Africa and
other countries.

Practicing lawyers in the administration of IPRs also play a
crucial role. The Registries mentioned above are inundated with
filings and applications for trade mark and patents. The Nigerian
IP lawyers have taken the challenge with the formation of the
Intellectual Property Lawyers Association of Nigeria (IPLAN),
Nigerian local chapter of the International Association for the
Protection of Intellectual Property (AIPPI), Anti-Counterfeiting
Collaboration (ACC), Nigeria13. These pressure groups
are formed with the sole objective of improving and developing
intellectual property in Nigeria as well as lobbying for IP law
reform. The Intellectual Property Commission (IPCOM) Bill which is
currently awaiting presidential assent is largely due to efforts of
the IP community and the various associations mentioned above.

The faculties of law of Nigerian Universities offer courses in
Intellectual Property Law by which undergraduate students are
introduced to major developments in intellectual property law. In
the curriculum of studies, IP students are given hypothetical cases
on compulsory licensing of pharmaceutical products. Moot court
competitions on intellectual property issues are organized among
students. Students are also admitted into internship programs with
leading IP law firms in Nigeria.

The Performing Musicians Association of Nigerian (PMAN) and
Federation of Intellectual Property Owners (FIPO) both play
significant roles in protecting members' rights.

Collecting Societies14: As mentioned above, the
continent boasts of a multi-million Dollar investment in "home
video" entertainment. Nigeria is the third largest home video
entertainment country with over 200 home videos released every
month. The music industry is growing in the region with the
introduction of Music Broadcast stations like Nigezie and Channel
O, to mention just a few. The need for a system of collection of
royalty is coming up in the region. These societies grant licenses
to distributors and users of copyright works most especially music
and collect royalties in return.

CHALLENGES TO THE DEVELOPMENT OF IPRs IN SUB-SAHARA
AFRICA

Inadequate Skills and Personnel:

The administration of IPRs in Sub-Sahara Africa is incapacitated
by inadequate skills. Persons involved in its administration are
usually not experts. For instance in Nigeria, patent examiners are
not experts in the field of science and technology, therefore the
grant of a patent is as to form only, there is no substantive
examination.

Infrastructure and IT:

The infrastructure for operation of IPR in sub-Sahara Africa is
still largely undeveloped. Information Technology is also in the
early level of development thus not encouraging proper research by
IP experts, students and scholars. Filing of applications is always
slow in the region whereas IPRs vest on the date of filing as
against the date of grant. The process of grant of IPR could take
years due to the limited infrastructural facilities15 at
the Trade mark and Patent Registries. These infrastructure
deficiencies have not encouraged business development in Africa
with bottlenecks in passage of goods and services between borders
in the region.

Development in Law:

It is quite disappointing that after decades of independence
most countries in the sub-Sahara Africa have not made any
significant change in their IP laws, the laws have remained
outdated. Some of the major problems facing development in IP law
in Nigeria are enumerated below.

Africa still lags behind in developing an indigenous law that
will address basic issues on IPRs germane to its economy and
intergovernmental activities in the region. In the area of
trademarks, there have been developments of other forms of marks
different from marks relating to goods. There are service marks,
scent marks, sound mark and slogans. Presently in Nigeria, service
mark is only now recognized and protected by an amendment to the
regulation made by the Minister of Commerce in exercise of his
powers under the Trade Mark Act, 1965. There have been questions as
to whether that amendment is legal16. The grant of
patent on some plant varieties and seeds already in force in
England has been recognized and regulated in Kenya17 and
South Africa18 and it is indeed a milestone development.
Nigeria and some other sub-Sahara Africa still regard plant
varieties as non-patentable in their laws19. It is hoped
that this will be corrected in the Bill amending the Trademark Act
of 1965

The judiciary is not up to date with issues relating to IPRs.
Most cases found in these courts are only limited to trademarks
while there are very few on copyright and patents Nigeria. Also
most IP cases are settled by the parties before they get to the
appeal courts.

South African Case

The legislative 1997 amendment to the Medicines Act was intended
to provide for the parallel importation of patented medicines. The
1997 Amendment Act, which amended the South African Medicines and
Related Substances Act no. 101 of 1965, introduced a new section
15C. The Minister may prescribe conditions for the supply of more
affordable medicines in certain circumstances so as to protect the
health of the public, and in particular may:

notwithstanding anything to the contrary contained in the
Patents Act, 1978 (Act no. 57 of 1978), determine that the rights
with regard to any medicine under a patent granted in the Republic
shall not extend to acts in respect of such medicine which has been
put onto the market by the owner of the medicine, or with his or
her consent;

prescribe the conditions on which any medicine which is
identical in composition, meets the same quality standard and is
intended to have the same proprietary name as that of another
medicine already registered in the Republic, but which is imported
by a person other than the person who is the holder of the
registration certificate of the medicine already registered and
which originates from any site of manufacture of the original
manufacturer as approved by the council in the prescribed manner,
may be imported; "

It will be noted that the language of section 15C appears to
provide the Minister (of Health) with wide powers to override
patent laws and patent rights. This would be contrary to TRIPS.

It should also be noted that paragraph (b) of section 15C, which
deals with the importation of an "identical" medicine
does not refer to importation by persons other than the patent
owner, but to importation by persons other than the holder of the
"registration certificate" in respect of the medicine -
presumably the certificate authorizing the marketing of the
medicines. This discrepancy created some uncertainty in the patent
context.

However, in regulation 7 of the Regulations issued in terms of
section 15C, there is a clear reference to the importation of a
patented medicine sold outside South Africa with the consent of the
patent holder. This is interpreted as an indication that parallel
importation is in fact contemplated by the legislature.

This is, unfortunately, not entirely clear because the term
"parallel importation" (which is defined in the
definition part of the Regulations as (the" importation into
the Republic of a medicine protected under patent and/or registered
in the Republic that has been put onto the market outside the
Republic by or with the consent of such patent holder") has
not been used in regulation 7. The Guidelines issued respect of the
Regulations, appear to support the argument that parallel
importation is indeed what is contemplated in regulation 7, so that
regulation 7 should be interpreted and applied in its correct
sense, namely to refer to the importation of branded products
obtained outside South Africa from the patentee or its authorised
licensees.

Accordingly, the importation mechanism created by regulation 7
was not intended to provide a means for importing generic
equivalents.

Piracy and Counterfeiting:

As big as the potentials of Intellectual Property Rights
operation in Africa is, piracy and counterfeiting have become the
factor frustrating its development. Sub-Sahara Africa is indeed a
big market with so much potential for growth. The region has not
been able to achieve maximum potential due to acts of piracy and
counterfeiting. Nigeria remains a gateway to the rest of the region
for counterfeit products and fake goods are constantly being
offered alongside genuine goods to unsuspecting and undiscerning
consumers.

The IP laws of Nigeria for instance do not provide for adequate
enforcement of the rights of an owner of intellectual property. The
penalty for infringement especially piracy and counterfeiting is
not sufficient to deter would-be offenders. The only remedy for an
owner is civil action in court, there is no provision in the law
for criminal prosecution except in the area of copyright where the
owner can institute a criminal action thorough the NCC

International Relations and IPRs Development

The establishment of World Intellectual Property Organization
has brought in its wake the need to uplift Sub-Sahara Africa and
make it the beneficiary of globalization and international
development. This has been reiterated in treaties and
updates20. WIPO is constituted of 184 member States,
with forty-eight of them in Sub-Saharan Africa21[2]. The
WIPO is set to bring about cohesion and inflow of activities among
member States. One of the treaties of WIPO is the Berne Convention
for the Protection of Literary and Artistic Works 1886. The
provisions of this treaty is targeted towards developing countries.
The treaty comprises of three major principles vis: principle of
national treatment; principle of automatic protection and principle
of independence of protection.

The WIPO also acts as depository to other treaties which include
the WIPO Copyright Treaty regulating copyright protection among
member nations also stressing the principle of national treatment,
and WIPO Producers of Phonograms Treaty regulating phonograms
production and protection of rights of phonograms.

An extension of the international relations to the development
of IPR is the creation of World Trade Organization (WTO), which
succeeded General Agreement on Tariffs and Trade (GATT) in 1994.
The advent of an international economic order has fundamentally
changed the nature of the global economy, affecting countries as
well as the firms and individuals in every nation and
region22. The introduction of WTO brought about the
start of international economic law. One of such provisions in this
respect is the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS). Prior to TRIPS Agreement, countries
practiced the doctrine of territoriality (which states that
property rights are to be honoured by each State's rules) and
the doctrine of independence (which states that the grant of
property rights within one country does not have force in
another)23. This however changed with the introduction
of TRIPS Agreement which preaches free market economy as against
the earlier practice by least developed countries (LCDs) of
reduction of benefits to innovators (working requirement and
compulsory licensing)24.

The framework of TRIPS Agreement emphasizes the view that the
justification for granting IPRs is to present to the innovator some
monopolistic return for an investment that will benefit society and
which would otherwise not occur. Provision is however made to
address the issues of concern to developing
countries25[6]. The Agreement also reinforces transfer
of technology between the developed and developing countries of the
world26.

Over a period of time, member countries have met to formulate
policies further to the implementation of the provisions of TRIPS
Agreement. Some of such meetings are the Doha Round negotiations
whereby the Doha Declaration on TRIPS and Public Health
(""Doha Declaration) calls for flexibility to allow LDCs
to decide on extent of intellectual property protection in the face
of public health crises which can constitute national emergencies.
The Doha Declaration allows LDC member States to grant compulsory
licences for the importation of drugs in cases of emergency which
is usually determined by these countries subject to notification to
the General Council27.

The above discussion shows that the WTO with the WIPO allows for
participation of Sub-Saharan African countries in internal economic
development thus attaining the status of technology oriented States
in near future through transfer of technology.

African Regional Intellectual Property Organization

The Sub-Sahara African countries have also gone a step further
by creating a regional institution in intellectual property rights.
This is known as the African Regional Intellectual Property
Organization (ARIPO28). The history of ARIPO goes back
to the early seventies when a regional seminar on patents and
copyright for english speaking African countries was held in
Nairobi. That seminar recommended that a regional industrial
property organization be set up. In 1973, the United Nations
Economic Commission for Africa (UNECA) and the World Intellectual
Property Organization (WIPO) responded to a request by these
english speaking African countries for assistance in pooling their
resources together in industrial property matters by establishing a
regional organization.

Following a number of meetings at UNECA headquarters in Addis
Ababa and WIPO in Geneva, a draft Agreement on the Creation of the
Industrial Property Organization for English-speaking Africa
(ESARIPO) was prepared. This agreement, now known as the Lusaka
Agreement, was adopted by a Diplomatic Conference held in Lusaka,
Zambia on December 9, 1976. This organization is established by a
Treaty and a Protocol to the Treaty. The Treaty basically sets up
the administrative organs and financial obligations of its member
States. The objectives of the organization include;

to promote the harmonization and development of the industrial
property laws, and matters related thereto, appropriate to the
needs of its members and of the region as a whole;

to foster the establishment of a close relationship between its
members in matters relating to industrial property;

to establish such common services or organs as may be necessary
or desirable for the co-ordination, harmonization and development
of the industrial property activities affecting its members;

to organize conferences, seminars and other meetings on
industrial property matters;

to promote the exchange of ideas and experience, research and
studies relating to industrial property matters;

to assist its members, as appropriate, in the acquisition and
development of technology relating to industrial property
matters;

Beside ARIPO, there are two regional documents that attempt to
address the issue of patent protection, namely the Lome Convention
and Lagos Plan of Action which espouse the policies that relate to
acquisition and absorption of foreign technology. However, the
documents emphasize trade in tangible as opposed to intangible
products29.

Conclusion and Recommendations

The Intellectual Property Rights is developing in Sub-Sahara
Africa though, we recognize, it is not where it ought to be. There
are a number of significant developments in IPRs in the region and
they are briefly enumerated as follows.

The role of collecting societies in Nigeria is fast becoming
significant and an example of this is the licensing of traders in
Alaba International Market Lagos, to produce and distribute albums
belonging to the members of those societies. In combating piracy,
the Nigerian government also introduced through the Nigerian
Copyright Commission (NCC), the Copyright (Optical Discs Plants)
Regulations 2006 which mandates all disc manufacturing companies in
Nigeria to register with the NCC and meet required conditions for
operation.

In Kenya and South Africa, there has been the introduction of
new laws recognising some plant varieties and conditions for grant
of patents coupled with grant of Plant Builders' Right to
agricultural and horticultural produce30.

The need for an impressive development of IPRs is however
conditional on some factors being put in place and they
include:

Proper review and amendment of IP laws in Sub-Sahara Africa to
indicate contemporary issues in IPRs.

Provision and maintenance of infrastructure to allow easy
access to information and development of IPRs through transfer of
technology to the region since IPRs need to be worked in the
domiciled country for listing in the register or archives of the
ministry.

Financing of university education on Intellectual property and
technology and provision of IT facilities to aid learning culture,
research and application of technical know-how

Intensive and regular training of IP personnel and
practitioners to keep abreast of current developments in
contemporary IPRs.

Ratification, intensive operation of and participation in
Treaties of WTO on IPRs.

The introduction and adequate implementation of collective
system of royalty payment and collection.

Appointment of IP experts and professionals into offices and
parastatals for the implementation of policies on IPRs.

Introduction and enforcement of local content in multinational
companies for transfer of knowledge and technology to nationals of
sub-Sahara Africa.

Footnotes

Ms. Nwokocha serves in the position of Partner in Aluko
& Oyebode. Capitalizing upon many years of in-depth training,
background experience in law, qualifications and an astute grasp of
her field of expertise, she is responsible for managing the
intellectual property portfolio of clients and advising clients on
their specific needs. Ms. Nwokocha utilizes her vast legal
expertise to turn potential into action through meticulous
preparation and skilled training. Motivated by life's many
challenges, she attributes her professional success to high ethical
standards and conduct, good interpersonal and communication skills,
and dedication. For the future, Ms. Nwokocha is committed to
providing optimum service to Aluko & Oyebode through continued
"best" practices and customer satisfaction.

Kameri-Mbote, Patricia: "Intellectual Property
Protection in Africa: An Assessment of the Status of Laws, Research
and Policy Analysis on Intellectual Property Rights in Kenya"
assessed fromhttp://www.ielrc.org/content/w0502.pdf

WT/L/540 and Corr.1: Implementation of paragraph 6 of
the Doha Declaration on the TRIPS Agreement nad Public Health;
Decision of the General Council of 30 August 2003
WT/MIN(01)/DEC/2 20 November 2001: Doha Declaration on the TRIPS
Agreement and Public Health, Adopted on 14 November,
2001

Kameri-Mbote, Patricia: "Intellectual Property
Protection in Africa: An Assessment of the Status of Laws, Research
and Policy Analysis on Intellectual Property Rights in South
Africa"; being an IELRC Working Paper 2005-2

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information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.